Thomas J. Pyle: Don’t let EPA fool state twice

The U.S. Supreme Court’s recent ruling against the Environmental Protection Agency’s costly mercury regulation was a sharp rebuke to President Obama’s environmental agenda. But it also serves as a cautionary tale to Gov. Sam Brownback and state lawmakers deciding whether Kansas will help the EPA impose its final Clean Power Plan regulation.

First, the backstory. The EPA issued its Mercury and Air Toxics Standards regulation back in 2012 to cut certain emissions from power plants. But regulators failed to consider its $9.6 billion price tag when drafting it. In June, more than three years after the regulation was finalized, the Supreme Court ruled this benefits-only analysis was improper. It sent the EPA back to the drawing board.

Yet for millions of families, in Kansas and elsewhere, this was too little, too late.

Despite the yearslong legal process still playing out, coal plants were already closing. By one estimate, 90 percent of the damage was already done by the time the Supreme Court issued its decision. After the decision, one utility executive explained that those lost coal plants are gone for good: “We’re not bringing them back. Once that ball gets rolling, it’s not going to change.”

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This lost output was ultimately replaced with higher-cost alternatives. Thus, despite the regulation being ruled illegal, it nonetheless imposed higher electricity rates on families and businesses already struggling to get by.

Brownback and state legislators should take note of this debacle as they decide whether Kansas will submit plans for President Obama’s carbon rule, which will force Kansas to cut its carbon dioxide emissions by 23 percent by 2030.

The carbon rule will require a fundamental restructuring of the state’s energy grid – even more than the EPA’s mercury regulation. As traditional power plants are forced offline, Kansans will be forced to rely on more expensive and less reliable alternatives such as wind and solar.

Even worse, the North American Electric Reliability Corp., known as the nonpartisan “grid doctor,” says the rule could make it harder to keep the lights on.

But just like the mercury regulation, this new carbon regulation faces serious legal challenges. Fifteen states – including Kansas – have sued to stop it in federal court, arguing it’s a brazen federal overreach.

Kansas therefore finds itself in a similar predicament to what happened after the EPA released the mercury regulation in 2012: Participate in the carbon regulation and risk the Supreme Court ultimately striking it down, or wait until the court rules before deciding how to proceed.

The latter approach is the right one. Brownback and other state lawmakers would be wise to take a wait-and-see approach. Submitting state plans to the EPA before the court rules may needlessly lead to hundreds or even thousands of dollars in higher electricity costs on Kansans.

It is simply irresponsible to foist higher costs on ratepayers when the rule stands a strong chance of being struck down.